Angels Do Not Govern:
Constitutional Sovereignty as a Response to Humanity’s Sinful Nature
William E. Thro
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
— James Madison1The Federalist No. 51 (James Madison). Madison’s views on the nature of humanity and the need to control the government reflect the influence of John Witherspoon, arguably the greatest Calvinist thinker of the Eighteenth Century and Madison’s graduate tutor in Hebrew and political philosophy. See Ian Spier, The Calvinist Roots of American Social Order: Calvin, Witherspoon, and Madison, Public Discourse (Apr. 13, 2017), http://www.thepublicdiscourse.com/2017/04/19116/.
Writing to the Romans, Paul stated an inherent truth about humanity — “all have sinned and fall short of the glory of God.”2Romans 3:23.The message is reinforced throughout scripture. See 1 Kings 8:46; Psalm 14:3; 1 John 1:8. All scriptural references are English Standard Version. As theologian R.C. Sproul explained,3Readers who do not embrace Reformed theology may be unfamiliar with Dr. Sproul, but he “was one of the great defenders of historic Christianity of our times. It is fair to say that R.C. was the greatest and most influential proponent of the recovery of Reformed theology in the last century.” Albert Mohler, A Bright and Burning Light: Robert Charles Sproul, February 13, 1939-December 14, 2017, AlbertMohler.Com (December 114, 2017) https://albertmohler.com/2017/12/14/bright-burning-light-robert-charles-sproul-february-13-1939-december-14-2017 “[w]e are not sinners because we sin; we sin because we are sinners. Since the fall, human nature has been corrupt. We are born with a sin nature. Our acts of sin flow out of this corrupted nature.”4R.C. Sproul, What is Reformed Theology: Understanding the Basics 1595 (1997) (Kindle Edition). As Chesterton observed, the sinful nature of humanity is “the only part of Christian theology which can really be proved.”5G.K. Chesterton, Orthodoxy 5 (1908). Because we are not angels, but sinners, government is necessary.
Yet, until our “eyes have seen the glory of the coming of the Lord,”6Julia Ward Howe, Battle Hymn of the Republic (1861) we will be governed not by angels but by sinners.7Jeffrey A Brauch, Flawed Perfection: What it Means to Be Human and Why It Matters for Culture, Politics, and Law 165-173 (2017) (Kindle Edition) Our leaders are just as sinful as the citizens they lead.8James R. Rogers, Lessons for America from Europe’s Christian Democracy, Law & Liberty (July 28, 2020) (available at https://lawliberty.org/lessons-for-america-from-europes-christian-democracy). As Samuel warned, human leaders will fight unjust wars, seize property, abuse individual rights, and apply confiscatory taxes in pursuit of their own glory.91 Samuel 8: 10-18. Our Nation’s story illustrates the point.10See generally Wilfred M. McClay, Land of Hope: An Invitation to the Great American Story (2019) The American republic was “conceived in liberty and dedicated to the proposition that all . . . are created equal,”11Abraham Lincoln, Gettysburg Address (1863). but our Constitution betrayed those principles by implicitly permitting slavery.12U.S. Const. art. I, § 2, cl. 3; art. I, § 9, cl. 1; art. IV, § 2, cl. 3. However, in the period between Independence and the adoption of the Constitution, Pennsylvania, New Hampshire, and Rhode Island adopted plans to end slavery. Phillip W. Magness, Slavery and the Constitution: From the Beginning, It Pointed Toward Racial Equality, National Review 19, 19 (July 27, 2020). In the same year that the Constitution was written, the Articles of Confederation Congress prohibited slavery in the lands North of the Ohio River and East of the Mississippi. David McCollough, Pioneers: The Heroic Story of the Settlers Who Brought The American Ideal West 29-30 (2019). Soon after the Constitution’s ratification, New York and New Jersey adopted plans to end slavery and Vermont, which had prohibited slavery, since Independence, became a State. Magness, supra, at 19. For a century after the “new birth of freedom,”13Abraham Lincoln, Gettysburg Address (1863). the “blessings of liberty”14U.S. Const. preamble. remained an unredeemed “promissory note” for former slaves and their descendants.15Martin Luther King, I Have A Dream (1963). While the last half century has seen much progress toward a “more perfect Union,”16U.S. Const. preamble. our leaders, most of whom profess to be Christian, pursue unjust policies which have no basis in natural law or eternal law.17Martin Luther King, Letter From the Birmingham Jail (1963). When our leaders deny these “self-evident truths,”18Declaration of Independence ¶ 2. Of course, these self-evident truths are not confined to one nation or People but belong to all of humanity. See Barack Obama, Address on the Centennial of Nelson Mandela’s Birth (2018). See also Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela 6630 (1995) (Kindle edition) (explaining his admiration for British and American constitutional principles). they deny the dignity19Obergefell v. Hodges, 135 S. Ct. 2584, 2639 (2015) (Thomas, J., joined by Scalia, J., dissenting) (“Human dignity has long been understood in this country to be innate… That vision is the foundation upon which this Nation was built.”) See also Id. at 2639-40 (Thomas, J., joined by Scalia, J., dissenting) (“Our Constitution — like the Declaration of Independence before it — was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from — not provided by — the State.”). of those who bear the image of God.20Genesis 1: 26-27. Because angels do not govern sinners, we must control those sinners who govern their fellow sinners.
The theological reality of humanity’s sinful nature determines how to frame a constitution where sinners govern sinners. Such a constitution cannot adopt a Pelagian perspective,21Pelagius, a fifth century British monk, taught that individuals had the capability to repent their sins and achieve salvation. R.C. Sproul, Willing to Believe: The Controversy Over Free Will35 (1997). According to Pelagius, God’s grace is helpful, but it is unnecessary. Allister E. McGrath, Christian Theology: An Introduction 448 (3d ed. 2001). which assumes humanity is inherently good and virtuous22George Weigel argues those who advocated for a new European Constitution viewed humanity as inherently good. See George Weigel, The Cube and the Cathedral (2005). Robert Keegan has suggested that the foreign policy disputes between the United States and Europe are a product of different perspectives on humanity. See Robert Keegan, Of Paradise and Power (2003). and, thus, will defer to those in power.23See Steven Breyer, Active Liberty(2005) (Advocating judicial deference to legislative majorities). Indeed, “the ostensible spiritual freedom of the Pelagian ‘freedom of the will’ that sets the ground for political despotism, because, if true, human coercion could then effect a real change in the soul.”24Rogers, supra note 8. Rather, a constitution for a polity where sinners govern sinners must adopt a Augustinian25Augustine, a fifth century North African Bishop, taught that individuals lacked the capacity to repent their sins and achieve salvation. Sproul, Willing to Believe, supra note 21, at 51. See also R.C. Sproul, Chosen By God 65 (1986) (discussing Augustine’s views in the context of the doctrine of predestination). In other words, God’s grace is indispensable. Sproul, Willing to Believe, supra note 21, at 51 (“Augustine established grace as indispensable to the Christian life.”). See also McGrath, supra note 21, at 448 (“[F]or Augustine, humanity needed to be shown what to do and then gently aided at every point . . . .”). The Augustinian view states that humanity is inherently bad, corrupt, or, yes, sinful. Sproul, Willing to Believe, supra note 21, at 52–55. If a nation — like Augustine — assumes that humanity is inherently sinful, then it will develop a constitution that will be distrustful of and will check the exercise of power. or Calvinist perspective.26Of course, the Augustinian view forms the basis for the theology of John Calvin. See Jon Balsarek, Calvinism: A Very Short Introduction 4 (2016). Like Calvin, it must assume “there is never a moment in human history when that which is human can be trusted blindly as a force for good.”27Marci Hamilton, The Calvinist Paradox of Distrust and Hope at the Constitutional Convention, in Christian Perspectives on Legal Thought 293, 295 (Michael W. McConnell, Robert F. Corchran, Jr., & Angela C. Carmella, eds., 2001). The Augustinian or Calvinist distrust of “any entity exercising power”28Id. at 293. “creates the conceptual ground for political freedom.”29Rogers, supra note 8. This freedom, which is endowed by God and not by a government of sinners, is essential to achievement of a peaceful society in which people have diverse views about fundamental questions. See John D. Inazu, Confident Pluralism: Surviving and Thriving through Deep Difference (2016) Recognizing humanity’s sinful nature, power and responsibility must be not be in concentrated in any person or groups of persons.30When applied to all aspects of life rather than simply the government, the Augustinian or Calvinist vision results in power and responsibility being not only among leaders, but between family, guild, university, city, region, church, and nation with each exercising “sovereignty” in its own “sphere.” See Abraham Kuyper, Sphere Sovereignty in Abraham Kuyper, A Centennial Reader 488 (James D. Bratt, ed. 1998). For a discussion of the implications Kuyper’s sphere sovereignty, see James D. Bratt, Abraham Kuyper: Modern Calvinist, Christian Democrat 132 (2013); Richard J. Mouw, Abraham Kuyper: A Short and Personal Introduction 236 (2011); Robert F. Cochran, Jr., Tort Law and Intermediate Communities: Calvinist and Catholic Insights in in Christian Perspectives on Legal Thought 486, 487-88 (Michael W. McConnell, Robert F. Corchran, Jr., & Angela C. Carmella, eds., 2001). Gordon J. Spykman, Sphere Sovereignty in Calvin and the Calvinist Tradition, in Exploring the Heritage of John Calvin 167 (David E. Holwerda, ed., 1976).
The United States Constitution reflects an Augustinian or Calvinist perspective31Augustinian and Calvinist theology form the philosophical basis for many aspects of the American Republic. See James H. Smylie, Madison and Witherspoon: Theological Roots of American Political Thought, 73 American Presbyterians 155 (1995). Indeed, the Framing Generation had great awareness of the Reformed Theology. Mark David Hall, Roger Sherman And The Creation Of The American Republic 12-40 (2013). This is not to discount the influence of Locke or Montesquieu, but simply to acknowledge the role of Calvinist thought. As Hall explained, “American leaders were familiar with Locke, but few thought his political philosophy was at odds with traditional Christian or Calvinist political ideas.” Id. at 24. Rather, “Locke’s political philosophy is best understood as a logical extension of Protestant resistance literature rather than as a radical departure from it.” Id. at 21. and embodies “obsessive distrust of government — all government — and [the] elevation of law into the ruling power of the state. Indeed, the idea of law itself as sovereign is the key.”32David Starkey, Magna Carta: The Medieval Roots of Modern Politics 1308 (2015) (Kindle Edition) (emphasis original). By making the law or, more precisely, the written Constitution, as sovereign, the American Republic is distinguished from those nations that make a human being (the monarch, religious leader, or dictator) or group of humans (the Parliament or the Party or the People themselves) as sovereign.33As explained throughout this Essay, the idea that the Constitution is sovereign encompasses the American understanding of terms like “Government of Laws, not Men,” or the “Rule of Law” or “Law of the Land,” but it means something more.
The concept of “Constitutional Sovereignty”34The term “Constitutional Sovereignty” is my own invention to describe Starkey’s concept of the law as sovereign or the law as supreme. See Starkey, supra note 32, at 1303-21. where a written constitution, rather than a monarch, is sovereign began in 1215 among “the reeds of Runnymede” with “the first attack on Right Divine.”35Rudyard Kipling, The Reeds of Runnymede (1922). Magna Carta, forced on King John by a group of English Barons,36Dan Jones, Magna Carta: The Birth of Liberty 123-31 (2015) established explicit written limits on the King’s power and an explicit written enforcement mechanism for those limits:37Magna Carta, ch. 61. twenty-five men38For a list of the “Magna Carta Sureties,” see https://magnacarta800th.com/schools/biographies/the-25-barons-of-magna-carta could declare the King in violation of Magna Carta and could make war against the King.39Starkey, supra note 32 at 621-630. While the 1215 Magna Carta did “invent freedom” for the English-Speaking Peoples,40Daniel Hannan, Inventing Freedom: How The English-Speaking Peoples Made the Modern World 49-55 (2013) it did not permanently establish Constitutional Sovereignty.41Starkey, supra note 32, at 1288. Over the space of seventeen months from June 1215 to November 1216, the Pope annulled Magna Carta,42Nicholas Vincent, Magna Carta: A Very Short Introduction 74-75 (2011) war broke out between King John and the Barons,43Robert Tombs, The English and Their History 75 (2016) King John died,44Jones, supra note 36, at 176. and Sir William Marshal,45Id. at 181. “Although he was around seventy years old, Marshal was one of the respected figures in England and the only Earl who remained loyal to the end.” as regent for the nine year old Henry III, issued a new version of Magna Carta.46Id. at 182. Marshall’s 1216 version of Magna Carta, which lacks an enforcement mechanism,47Id. at 184. “The question of how to restrain an out of control king would remain alive for the Middle Ages and beyond . . .” “is centrist and is the painstaking work of the political process” and this version is “the foundation of English political history.”48Starkey, supra note 32 at 1288 The barons lost; the 1216 Magna Carta was not Constitutional Sovereignty. The original Magna Carta’s “chapter 61 — the forma secures — [was] a short term, misconceived expedient . . .”49Id. at 1303.
The British made a second effort at Constitutional Sovereignty. In 1628, with the Petition of Right,50Peter Ackroyd, Rebellion: The History of England from James I to the Glorious Revolution 133-34 (2014). Sir Edward Coke tried “to make Magna Carta fundamental law inviolable by either king or parliament. The attempt failed.”51Starkey, supra note 32, at 1309. The following years “brought civil war, a king’s execution, the Cromwellian regime, restoration, and a bloodless revolution.”52A.E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America 9 (1968) (paperback edition 2015). Consequently, the “Crown in Parliament,” not the monarch alone, became sovereign.53Martin Loughlin, The British Constitution: A Very Short Introduction 50 (2013). In the United Kingdom, the “Crown in Parliament” can “make or unmake any law whatsoever” and no court can “override or set aside” a parliamentary act.54Id. at 32. However, with the establishment of a Supreme Court of the United Kingdom in 2005 with the explicit recognition of the “rule of law,” one can argue that the British are moving from “parliamentary supremacy” to “constitutional supremacy.” Id. at 116.
Yet, “[i]n America, the barons have won; chapter 61” is “a far-sighted anticipation of both the letter and the spirit of the” Constitution.55Starkey, supra note 32, at 1303. Sir Edward Coke “succeeded in America” because the Constitution is “untouchable, fundamental law, to be interpreted not by Congress, still less by the President, but by Justices of the Supreme Court.”56Id. at 1312. Instead of a constitutional design that “was largely a set of unwritten customs [like the United Kingdom, the American] founders deliberately rejected that model when they decided to adopt a written Constitution.”57Neil Gorsuch, A Republic, If You Can Keep It 116 (2019). That choice reflected the colonial experience with written limitations on government colonial58Howard, supra note 52, at 14-98 (discussing the influence of Magna Carta in the Colonial Charters, the New England Covenants, the Proprietary Colonies, and Pennsylvania. as well as the influence of Coke.59Id. at 118-24, 130-32 369-70. Indeed, the Mayflower Compact, although only a single paragraph, represents both government by consent and limitations on governmental power.601 Alfred H. Kelly, Winfred A. Harbison, & Herman Belz, The American Constitution: Its Origins and Development 8-10 (7th ed. 1991).
As this account of British and American constitutional history demonstrates, Constitutional Sovereignty requires limiting the government by consent of the governed, empowering the judiciary to enforce those limits, and then limiting judges. Each of these three propositions merits greater discussion in the American context.
First, by the consent of “We the People,”61 As Justice Gorsuch noted, “before the Constitution could take effect, the founders called on the states to convene special conventions of the people’s representatives. And they insisted on a supermajority of those conventions to ratify the original Constitution.” Gorsuch, supra note 57, at 119. For a detailed discussion of the Ratification debate, see Pauline Maier, Ratification: The People Debate the Constitution, 1787-88 (2010). the Constitution “withdraws certain subjects from the vicissitudes of political controversy” and “places them beyond the reach of majorities and officials.”62West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Initially, there are “certain specified exceptions to the legislative [and executive] authority” within the constitutional text.63The Federalist No. 78 (Alexander Hamilton). Those provisions impose both requirements and prohibitions. Additionally, there is the separation of powers.64“The value of separating powers finds mention even in [Roman Catholic] Scriptural history . . .” Florence Speedway, Inc. v. Northern Kentucky Independent Health District, No. 20-CI-678 at 12 (Boone Cir. Ct. July 20, 2020) (holding that Kentucky Governor acted unconstitutionally by issuing certain executive orders during the Covid Pandemic), stay granted, No. 20-SC-313-OA (Ky. July 16, 2020) Rather than combining executive, legislative, and judicial power in a single person65See 1 Maccabees 8:1, 14-15 (discussing the advantages of the Roman Republic in second century before Christ). or even a parliament dominated by a political majority, the Constitution “protects us from our own best intentions” by preventing the concentration of “power in one location as an expedient solution to the crisis of the day.”66New York v. United States, 505 U.S. 144, 187 (1992). Finally, instead of an all-powerful national government,67McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819). the Constitution “split the atom of sovereignty . . . establishing two orders of government [ federal and state], each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.”68U.S. Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J. concurring).
Second, since our constitutional actors are imperfect sinners, there will be times, “where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution . . .”69The Federalist 78 (Alexander Hamilton). “Whenever a particular statute [or executive action] contravenes the Constitution, it will be the duty of judicial tribunals to adhere” to the Constitution and declare the statutes and executive actions void.70Id.
This power of judicial enforcement goes beyond simply declaring a constitutional actor in violation of the Constitution. In Cooper v. Aaron,71Cooper v. Aaron, 358 U.S. 1, 18–19 (1958) (“It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land . . .”) Accord United States v. Nixon, 418 U.S. 683, 704 (1974); Powell v. McCormack, 395 U.S. 486, 549 (1969). the Supreme Court of the United States established “Judicial Supremacy”72Josh Blackman, The Irrepressible Myths of Cooper v. Aaron, 107 Geo. L.J. 1135, 1137 (2019). — its decisions interpreting the Constitution were the supreme law of the land even though the other branches or the states may interpret the Constitution differently.73Of course, others reject the notion that the Supreme Court’s constitutional interpretation is binding on the other Branches. See Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 331-32 (2015) (arguing that the judiciary does not have the sole power of constitutional interpretation); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 345 (1994). In the same case, the Court established “Judicial Universality”74Professor Blackman coined the term. Blackman, supra note 72, at 1137. — all government officials in the other branches of government and all States are bound by the Supreme Court’s decisions in a particular case even though those officials were not a party to the decision.75To allow other constitutional actors to pursue differing interpretations of the State Constitution and or to ignore similar constitutional decisions when they are not a party is a recipe for constitutional chaos and ultimately undermines the idea of the Constitution as Sovereign. After Cooper, constitutional actors must “follow the Court’s interpretations, not just in the particular case announcing those interpretations, but in similar cases as well.”76Stephen Breyer, Making Our Democracy Work: A Judge’s View 60 (2010). In America, “the government can and does lose in its own courts and then respect those judgements.”77Gorsuch, supra note 57, at 237.
Third, since judges are not angels, but sinners, there must be meaningful limits on how the judiciary interprets the Constitution. Because of judicial supremacy and judicial universality, courts will be tempted to become “a bevy of Platonic Guardians,”78Griswold v. Connecticut, 381 U.S. 479, 526 (1965) (Black, J., dissenting) (quoting Learned Hand, The Bill of Rights 70 (1958)). that “substitutes their predictive judgments for those of elected legislatures and expert agencies.”79Lingle v. Chevron, 544 U.S. 528, 544 (2005). Conversely, judges may be tempted to ignore the Constitution and simply defer to the judgment of legislators,80For example, Justice Breyer’ interpretative philosophy elevates the “Constitution’s democratic nature” while diminishing “the individual’s right to freedom from the majority.” Breyer, Active Liberty, supra note 23, at 5. For a negative review of Justice Breyer’s book, see William E. Thro, A Pelagian Vision for Our Augustinian Constitution: A Review of Justice Breyer’s Active Liberty, 32 J. Coll. & U.L. 491 (2006). bureaucrats,81Deference to the bureaucracy “sits uneasily with the Constitution. Article III, § 1 provides that the judicial Power of the United States is vested exclusively in this Court and the lower federal courts. A core component of that judicial power is the duty of interpreting [the laws] and applying them in cases properly brought before the courts.” Kisor v. Wilkie, 139 S. Ct. 2400, 2437, (2019) (Gorsuch, J., concurring) See also Phillip Hamburger, Is Administrative Law Unlawful (2014) (arguing that administrative law is contrary to both British and American constitutional design) or university administrators.82In an Augustinian or Calvinist constitutional design, there is never a reason to defer to a public official. William E. Thro, No Angels in Academe: Ending the Constitutional Deference to Public Higher Education, 5 Belmont L. Rev. 27, 27-32 (2018). Sometimes our jurists give in to temptation. Dred Scott v. Sandford,8360 U.S. (19 How.) 393 (1857). Plessy v. Ferguson,84163 U.S. 537 (1896). Buck v. Bell,85274 U.S. 200 (1927). Koremastu v. United States,86323 U.S. 214 (1944). and Roe v. Wade,87410 U.S. 113 (1973). are contrary to the original public meaning of the Constitution’s text. Individual jurists sometimes admit they have succumbed to temptation. Judge Calabresi believes judges should revise statutes that are “out of date, out of phase, or ill adapted to the legal topography,”88Guido Calabresi, A Common Law for the Age of Statutes 18 (1982). a view that “cannot be reconciled with fundamental tenets of the American form of representative democracy.”89Samuel Estreicher, Judicial Nullification: Guido Calabresi’s Uncommon Common Law for A Statutory Age, 57 N.Y.U. L. Rev. 1126, 1129 (1982).
To preserve “the rule of law from the dictatorship of a shifting Supreme Court majority, . . . judicial opinions should be grounded in consistently applied principle” that respects Constitutional Sovereignty.90McCreary County v. ACLU, 545 U.S. 844, 890-91 (2005) (Scalia, J., dissenting). As Frederick Douglass observed, if the Constitution is “interpreted, as it ought to be interpreted, the Constitution is a glorious liberty document.”91Frederick Douglass, What to the Slave is the Fourth of July (1852) Respect for Constitutional Sovereignty requires rejecting “the conviction that the Constitution’s meaning changes over time and that judges should determine what changes should be made based on external policy considerations.”92Gorsuch, supra note 57, at 110. This “Living Constitutionalism” approach requires judges to “exercise Will instead of Judgment” and the “substitution of their pleasure to that of” the People’s elected officials.93The Federalist No. 78 (Alexander Hamilton) (emphasis original) Rather, respect for Constitutional Sovereignty requires accepting “the Constitution’s meaning was fixed at its ratification [or the ratification of the amendment] and the judge’s job is to discern and apply that meaning to the people’s cases and controversies.”94Gorsuch, supra note 57, at 110. Since all Constitutions were “written to be understood by the voters, its words and phrases were used in their normal and ordinary meaning as distinguished from technical meaning,”95United States v. Sprague, 282 U.S. 716, 731 (1931). See also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824). the judiciary may embrace “an idiomatic meaning,” but it must reject “secret or technical meanings that would not have been known to ordinary citizens” at the time the Constitution was adopted.96District of Columbia. v. Heller, 554 U.S. 570, 576–77 (2008). Such an approach recognizes the words of the Constitution represent an overwhelming democratic consensus.97As Justice Scalia explained during his confirmation hearings, “a Constitution has to have ultimately majoritarian underpinnings. To be sure, a constitution is a document that protects against future democratic excesses. But when it is adopted, it is adopted by democratic process. That is what legitimatizes it . . . ”Nomination of Judge Antonin Scalia to be Associate Justice of the Supreme Court of the United States, 99th Cong. 89 (1986) (statement of Antonin Scalia).
Of course, two pillars of Constitutional Sovereignty — the idea of limiting governmental officials and judicial enforcement of those limits — are well established as American constitutional norms, the third pillar — meaningful limits on the judiciary — is not well established and somewhat controversial.98It is not enough that the Constitution provide limits or even limits with judicial enforcement, those ideas must become part of the constitutional culture. Greg Lukianoff & Adam Goldstein, Law Alone Can’t Protect Free Speech, Wall Street Journal (August 13, 2020). Sinners want the court to give them “justice,” not to follow the Constitution. Losers in the political process want the Supreme Court to declare them winners. Yet, if the Constitution is to remain sovereign “to ourselves and our Posterity,”99U.S. Const. preamble. the sinners on the Court must be limited just like the sinners in the legislature or the executive.100It is unlikely that there will be a constitutional amendment requiring the judiciary to interpret and construct the Constitution using original public meaning, but the President and Senate can insist that judges who are confirmed are committed to respecting the text, recognizing the limits of judicial competence, and respects other constitutional values. See William E. Thro, Judicial Humility: The Enduring Legacy of Rose v. Council for Better Education, 98 Ky L. J. 717, 722 (2010).
Ultimately, “there is nothing new under the Sun.”101Ecclesiastes 1:9. After the Fall,102Genesis 3:1-6. To be sure, there is significant tension between our twenty-first century scientific knowledge and the Biblical account of Adam and Eve. Yet, if one assumes that there were human beings outside of the Garden of Eden, there is a plausible argument that a specially created Adam and Eve are the genealogical ancestors of the entire human race. S. Joshua Swamidass, The Genealogical Adam & Eve: The Surprising Science of Universal Ancestry (2019). human nature became sinful.103Romans 3:9-20; 5:12-14. Angels do not govern sinners; sinners govern sinners. Until “Christ shall come with shout of acclamation,”104Stuart K. Hine, How Great Thou Art (1949). we cannot perfect humanity through the governmental means. At best, like the Constitution’s framers, we can hope “well-structured [governmental] systems” can “deter . . . the human impulse toward tyranny.”105Hamilton, supra note 27, at 303. If America’s sinners are to “confirm thy soul in self-control, thy liberty in law,”106Katherine Lee Bates, America the Beautiful (1911 version). The lyrics come from Bates’ poem, America: A Poem for July 4 (1911 version). then the Constitution — not the Congress or the President or Courts or the People — must be sovereign. ♦
Mr. Thro thanks Bryan Beauman, Steve Clifton, Cliff Iler, Shannan Stamper, Julie Thro, and Noah Thro for their helpful comments. He thanks Linda Speakman for her editorial assistance.
William E. Thro, M.A., J.D is General Counsel of the University of Kentucky, former Solicitor General of Virginia, and and recipient of Stetson University’s Kaplin Award for Higher Education Law & Policy Scholarship and the Education Law Association’s McGhehey Award for Education Law. Mr. Thro, who is a Fellow of the National Association of College & University Attorneys and a Distinguished Research Fellow of the National Education Finance Academy, writes in his personal capacity and not on behalf of the University of Kentucky. Although his wife is a retired Presbyterian pastor and former Moderator of a Presbytery, Mr. Thro is, at best, an “armchair theologian.” Any heresies are his alone.